|Israel Resource Review
||19th August, 2005
Legal Brief Filed on Behalf of Jewish Residents of the Katif District in
the Gaza Strip
A legal brief was filed on Thursday, August 18, 2005, with the Supreme Court of Israel, on behalf of the Jewish residents of Israeli towns in Gaza strip who are being expelled from their homes by PM Sharons government. The brief is based on the unanimous opinions written in international law, prohibiting forced permanent population transfers. Some conventions define forced permanent population transfers as a crimes against humanity. Individuals from around the world have voiced their support.
The heartbreaking images broadcast live from Gaza on TV, show the IDF forcibly removing residents in a mass expulsion.
The brief contends that these acts defy international law based including the words of the United Nations Commission on Human Rights: The displacement of the population or parts thereof shall not be ordered, induced or carried out unless their safety or imperative military reasons so demand. All persons thus displaced shall be allowed to return to their homes, lands, or places of origin immediately upon cessation of the conditions which made their displacement imperative.
The brief argues that according to international law, only temporary transfers are permitted under extenuating circumstances, and arrangement s and conditions for the populations return must be defined and coordinated before the populations expulsion.
The brief asks the court to order the Israeli government ot follow international law.
Highlights of articles from international law cited in the legal brief follow:
Article 7 Crimes against humanity
The underlying premise of the brief is that deportation is a "crime against humanity." The brief covers deportation or forcible transfer of people when committed as part of a widespread or systematic attack directed against any civilian population.
Forced displacement of persons by expulsion or other coercive acts from the area in which they are lawfully present violates international law.
This international law is referred to as
a draft declaration on population transfer and the implantation of
settlers (United Nations Commission on Human Rights,
Sub-Commission on Prevention of Discrimination and Protection of Minorities).
This Declaration sets standards which are applicable in all situations, including peacetime, disturbances and tensions, internal violence, internal armed conflict, mixed internal-international armed conflict, international armed conflict and public emergency situations. The norms contained in this Declaration must be respected under all circumstances. [Article 1]
 Unlawful population transfers entail a practice or policy having the purpose or effect of moving persons into or out of an area, either within or across an international border, or within, into or out of an occupied territory, without the free and informed consent of the transferred population and any receiving population.
 1. Every person has the right to remain in peace, security and dignity in one's home, or on one's land and in one's country.
2. No person shall be compelled to leave his place of residence.
3. The displacement of the population or parts thereof shall not be ordered, induced or carried out unless their safety or imperative military reasons so demand.
All persons thus displaced shall be allowed to return to their homes, lands, or places of origin immediately upon cessation of the conditions which made their displacement imperative.
23. . . . The Agreement reached by these States on "Deported Peoples"(8) (1992) (9) unanimously condemned the then totalitarian policy of the forced resettlement of peoples, national minorities and individual citizens of the former Union of Soviet Socialist Republics. The Agreement also recognizes the necessity of undertaking the obligation to protect the legal interests of the deported peoples and to ensure their voluntary return to their places of residence prior to deportation.
. . . (6) With regard to this state of affairs, the overriding principle in territorial settlements should clearly be that the population goes with the territory in order to ensure that territorial changes do not necessarily lead to population transfers . . .
II. population Transfers and the Violation of Human Rights
12. The expert group affirmed the right to live and remain in one's homeland, i.e. the right not to be subjected to forcible displacement, as a fundamental human right and a prerequisite to the enjoyment of other rights.
1. The Phenomenon of Population Transfer
10. According to the expert group, population transfer and the implantation of settlers violate international law as developed when they meet one or more of the following criteria:
(a) They are collective in nature, affecting a group of persons. The population transfers can involve large numbers of people in a single event or they can be gradual, incremental or phased;
(b) They are carried out by force or threat of force;
(c) They are involuntary, without the full informed consent of the affected population(s);
(d) They are deliberate on the part of the Government or other party conducting the transfer, with or without whose knowledge the violations occur;
(e) They are systematic, forming a pattern of policy or practice;
(f) They are discriminatory, affecting a distinct population or distinct populations; and
(g) They take place without due process.
14. Collective expulsions or population transfers usually target national, ethnic, religious or linguistic minorities and thus, prima facie, violate individual as well as collective rights contained in several important international human rights instruments, in particular the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of the Child . . .
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